Malaysian Bar Wins Case Against DBKL

The Grounds of Judgment in Badan Peguam Malaysia v Datuk Bandar Kuala Lumpur (2013) is now out, and vindicates the Bar’s stand that they did nothing wrong in putting up banners without a DBKL licence on the Bar’s premises in Leboh Pasar Besar. A link to the judgment is in the article. To find it, you have to read the article and see the two pictures of Edmund Bon.

But there was another arrest that happened that day which I alluded to in my previous article. LoyarBurokker Edmund Bon, at that time also the Chair of the Bar Council’s Human Rights Committee, got himself arrested for obstructing a DBKL officer in the course of his duties. He had tried to stop the DBKL taking down banners that were part of the Human Rights Day celebrations. (Those of us who know him joke that he purposely got himself arrested, so as not to be outdone by Amer and Latheefa. Well, ok – I am the only one who makes that joke, which is not very funny. And I am sure that it’s not true. Really.)

Well, anyway, to cut a long story short, the Bar Council in 2009 decided to sue DBKL for taking away the banners that were hung at the Bar Council’s premises.

A few days ago, the Bar Council won. Judicial Commissioner SM Komathy Suppiah’s grounds of judgment are here. (The original Word document can also be found at the KL Courts website).

The High Court held that the requirement for a licence for a banner is only required when the banner is advertising a commercial product or service. The Judge gave this brilliant example of a banner that does not need a licence:-

“An example that readily comes to mind is the gigantic banner that was displayed at the entrance of the Court Complex in Kuala Lumpur in 2009, with the words “BUAT KERJA”. This banner was displayed for 12 to 15 months or so. A wide interpretation would mean the Court would require a licence to put up a banner to motivate the staff or to state the ethics of the judiciary. Was the banner said to be running foul of the By-Law as it was put up without a licence? I think not. There is no compelling reason to give the phrase a wide meaning as sought by the defendant.”

Having found the relevant by-laws only applied to commercial advertisements, the Court held:

“This ruling means that the DBKL officers had entered the plaintiff’s premises unlawfully when they went in to remove the banners. On the claim based on trespass , I therefore enter judgment in favour of the plaintiff and award special damages of RM320.00 and general damages of RM12,000.00. The plaintiff is also entitled to costs which are to be taxed unless otherwise agreed”

So the Bar wins, but doesn’t get much money. But as I understand it, the principle the case establishes will greatly advance the cause of freedom of expression in this country. The DBKL and other local authorities with similar by-laws cannot just take down the banners of protestors just because they have not paid a fee for the banner to the local authority. Of course for banners put up on a building, permission must still be obtained from the building’s owners.

Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 20 November 2013.
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